Federal laws protect employees from discrimination in the workplace on the basis of race, national origin, sex, religion, disability, pregnancy and age. Employers, however, often lead in advancing policies that create a welcoming and inclusive environment that embraces a multi-faceted and diverse workforce.

Title VII of the Civil Rights of 1964, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and other federal laws prohibit employment discriminationon the basis of race, color, national origin, sex, religion, disability, age and genetics. Despite these legal protections, the Equal Employment Opportunity Commission (EEOC) receives thousands of discrimination complaints each year. In addition, according to the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" (June 2016) one-third of the total charges received in 2015 included a claim of workplace harassment. To more fully examine these statistics, the EEOC in 2016 established its Select Task Force on the Study of Harassment in the Workplace. The Task Force concluded that sexual harassment training, without an organizational culture change, fails to prevent harassment because it is "too focused on simply avoiding legal liability." In cases that involved sexual harassment, three out of four individuals never raised harassment with their supervisor, manager or union representative out of fear of retaliation or disbelief of their claim.

The issue of sexual harassment in the workplace has been front and center in our national conversation in 2017. Media attention and the #MeToo campaign, along with the work of the EEOC, have led to an increased focus on the role of workplace culture in preventing harassment. In addition, the U.S. Congress, several state legislatures and other high-profile workplaces are re-examining their harassment policies to ensure fairness for employees at all levels of the organization.

Outlook:Legislation has been introduced in the 115th Congress that would prohibit employers from enforcing mandatory arbitration agreements for sexual harassment and sex discrimination claims. In addition, the House of Representatives recently passed legislation to require annual sexual harassment training for Members of Congress and their staff and to make Members of Congress personally liable for payments of settlement or injury.

Sexual Orientation and Gender Identity Nondiscrimination

Although existing federal laws do not explicitly prohibit discrimination on the basis of sexual orientation or gender identity, under the Obama Administration federal agencies have extended protections to federal employees and those who work for federal contractors. At the end of 2014, the Office of Federal Contract Compliance Programs under the U.S. Department of Labor issued a rule implementing an executive order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. In addition, the Equal Employment Opportunity Commission (EEOC) has pursued cases under the legal theory that complaints of discrimination on the basis of sexual orientation and general identity are sex discrimination claims under Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court has also ruled that federal bans on workplace sexual harassment apply when both parties are of the same gender.

To address the lack of legal protections for sexual orientation and gender identity nondiscrimination, members of Congress have introduced the Employment Non-Discrimination Act (ENDA) legislation in every Congress since 1994. The most recent version garnered bipartisan support in the 113th Congress, including Senate passage, but failed to gain traction in the House of Representatives. In the 114th Congress, broader civil rights legislation incorporating ENDA, as well as protections against discrimination in housing and access to public places, was introduced.

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Outlook: With President Obama's executive order already extending such protections to federal contractors, supporters of legislative efforts to ban discrimination on the basis of sexual orientation and gender identity have turned to broader legislation that would prohibit discrimination in employment, housing, banking and a number of other areas. This legislation will be reintroduced in the 115th Congress and will likely face opposition in the Republican-controlled House of Representatives. Whether sexual orientation discrimination is recognized as a sex discrimination claim under Title VII is likely to continue to play out in the courts. In addition, as the EEOC is restructured with Trump appointees as the existing Commissioners' terms expire, the Commission's priorities and interpretations may change.​

Pregnancy Discrimination

Under the Pregnancy Discrimination Act (PDA), employers with more than 15 employees are prohibited from discriminating against employees on the basis of pregnancy, childbirth or related medical conditions. Over the last several years, the number of pregnancy discrimination cases reported to the EEOC has increased. In 2014, the EEOC issued the first comprehensive update on the subject of discrimination against pregnant workers since 1983 through its "Enforcement Guidance on Pregnancy Discrimination and Related Issues." Among other issues, the updated guidance discusses discrimination not only related to a current pregnancy, but also past pregnancy and a woman's potential to become pregnant; to issues related to leave for pregnancy and medical conditions related to pregnancy; and to reasonable accommodations for workers with pregnancy-related impairments.

In March 2015, the U.S. Supreme Court considered discrimination under the PDA, in Young v. United Parcel Service. Although the case originated before the ADA Amendments Act, the court's decision reinforces that employers should treat pregnant employees' accommodation requests on a case-by-case basis, as they do under the Americans with Disabilities Act. That means that employers must engage in the interactive process of identifying an accommodation and ensuring that pregnant employees with work restrictions are offered the same accommodations made available to non-pregnant employees.

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Outlook:Young v. United Parcel Service decision appears to have diminished Congressional interest in pursuing legislation to address accommodations for pregnant employees. In addition, 45 states prohibit pregnancy discrimination, and several states and localities require accommodations specifically for pregnancy. It is unclear whether the 115th Congress will advance legislation on this topic. ​

Background Investigations

Background: HR professionals ensure that new hires possess the talent, qualifications and work ethic needed for the organization's success. Background investigations, including reference checks, credential or educational certification checks, criminal history checks, credit checks and drug tests, can play a pivotal role in the hiring process. At the same time, there is growing national interest in providing individuals a second chance without having their criminal past serve as an absolute bar to employment.

The Fair Credit Reporting Act of 1970 (FCRA) governs the use of consumer reports and has explicit protections for consumers. Further, Title VII of the Civil Rights Act of 1964 bars employment decisions based on policies or tests, such as credit or criminal background checks, that have a disparate impact on protected groups.

Issue: In his 2018 State of the Union address, President Donald Trump expressed support for "reforming our prisons to help former inmates who have served their time get a second chance." An integral part of this second chance is a renewed focus on the appropriate use of background checks to evaluate prospective employees.

Recent action on background checks has occurred primarily on the state level. Eleven states and the District of Columbia currently limit employers' use of credit information in employment: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington. Thirty states plus D.C. have adopted "ban-the-box" restrictions, which require employers to remove from employment applications the check box that asks about the job applicant's criminal convictions. These states are Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, and Wisconsin. Ten of these jurisdictions expand the requirement beyond public employers to include private-sector employers.

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Outlook: Given the bipartisan interest in criminal justice reform, Congressional action on this issue could advance including possible restrictions on the use of criminal reports. We also anticipate that Department of Labor's interest in revitalizing apprenticeships will include those individuals who were formerly incarcerated.

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